A Legal and Policy Risk Analysis of the Erik Prince Plan to Privatize War in Afghanistan

Trump administration officials reportedly are considering a plan to privatize a significant portion of the U.S. war in Afghanistan. Erik Prince, founder of the notorious security firm formerly known as Blackwater, is apparently the architect of a proposal to send 5,500 new contractors and a 90-plane private air force to assist the Afghan government. This infusion would involve a significant increase over the 23,500 contractors currently operating there. More importantly, it would result in a broad expansion of the role of U.S contractors in Afghanistan, most of whom are currently performing only logistics, administrative, and support functions. Prince explains that the private forces would be embedded as advisors with Afghan troops and would provide air support, and might even drop bombs from planes if so directed by the Afghans.

We have walked down this privatization path before, and each time, privatization has led to significant problems, problems that have seriously undermined our military mission. The Prince proposal offers some policy benefits but it also appears to raise a unique and lengthy list of extraordinary legal risks, policy pitfalls, and financial costs.

As with other recent military outsourcing initiatives, the proposal may seem to hold some appeal for political reasons. That is because jacking up the number of contractors in war zones costs less in political terms than deploying uniformed troops. Contractor casualties don’t get counted the way troop casualties do, and they don’t have the same symbolic impact. That’s one of the reasons why President Clinton scaled up the number of contractors in the Balkans in the late 1990s, and President George W. Bush used them so extensively during the early phases of the conflicts in Iraq and Afghanistan that at one point the number of contractors hovered around 260,000.

Proponents of military and security privatization, particularly the firms themselves, will also argue that there are significant financial savings as well. Prince, for example, reportedly claims that the proposal will cost $10 billion a year, one fourth of what is said to be the more than $40 billion the Pentagon has budgeted.

These apparent benefits may make it difficult for policymakers to see the significant risks of this approach. Yet if we contemplate the lessons learned from our previous privatization excursions, important questions come into focus. In particular, three areas of risk and concern deserve attention: (1) legal risks, (2) policy risks, and (3) hidden financial costs. In future essays at Just Security, I will elaborate more on these issues as they relate to the Prince proposal, if it still has life in it, and more generally to privatization on the modern battlefield. For now, it is important to lay out a few key questions that should raise red flags for anyone evaluating the Prince privatization proposal in this battlefield context.

Legal issues

It is important that policymakers take into account the possibility that this new privatization plan might raise significant legal risks to the United States. The law of armed conflict imposes obligations on states with respect to private military and security contractors, as is made clear by the Montreux Document on Pertinent Legal Obligations and Good Practices for States Related Operations of Private Military and Security Companies During Armed Conflict. The United States has been an active participant in the Montreux process. So, one question to ask is: have policymakers sought and received a thorough legal review to determine whether this new proposal would comply with the obligations reflected in the Montreux Document? And, to what extent would the United States be on the hook legally if things were to go wrong? For example, if contractors were accused of wrongdoing, such as targeting civilians through their advice to Afghani troops, could the United States be deemed legally liable under the law of state responsibility? And to what extent could U.S. support for the contractors constitute aiding and abetting under international criminal law which would put individual U.S. officials at legal risk? Depending on how it is structured, the Prince proposal may also inject quite a few contractors into active participation in hostilities which could pose problems under the law of war.

Other risks in the legal domain stem from the massive quantity of tort litigation arising out of wartime contracting that has been percolating up through courts around the United States for the past several years. While many of these suits have been brought against contract firms and individual contractors, they nonetheless can have legal consequences for the government. For example, lawsuits filed by those injured by contractors may expose government decision-making processes. Though some courts are willing to interpret broadly potential contractor defenses—such as the political question doctrine and so-called “battlefield preemption”—uncertainty remains about the fate of these cases, potentially exposing the government to unwanted discovery and ill repute. The lawsuit pending in the Federal District Court for the District of Washington against James Mitchell and John Jessen, the alleged contractor architects of abusive detainee interrogation techniques, is a case in point. And in some such cases, litigation costs could even be passed onto the government. All of these problems would likely be exacerbated if more contractors were operating in battlefield contexts, engaging in high risk behavior, and leading to more civil suits. Due to the structural relationship of Prince’s private forces to the US military and the unusual nature of their functions courts may be unwilling to provide them legal protections.

Legal questions also arise related to the Security and Defense Cooperation Agreement Between Afghanistan and the United States, particularly because contractors could be subject to criminal or civil penalties in Afghan courts. Have policymakers considered the implications of the potential increase in legal and political exposure in the Afghan court system, and have they conducted a review of how any such litigation costs would be paid?

Finally, the prosecutor for the International Criminal Court is currently weighing whether to open a formal investigation into possible criminal violations of the law of armed conflict in Afghanistan. Policymakers would be wise to ask what impact a large influx of U.S. contractors may have on the prosecutor’s calculation of whether and how to pursue the case. Privatized military forces are often viewed – rightly or wrongly – as out of control and more likely to commit abuses than uniformed soldiers. What is the risk that the prosecutor, alarmed by a new surge of U.S. contractors, could decide to take the Afghanistan investigation to the next level and put U.S. troops at risk of criminal prosecution?

Policy concerns

Turning from legal to policy concerns, it is worth asking whether policymakers are paying sufficient attention to the lessons learned from the last time we used massive numbers of contractors in Iraq and Afghanistan. For example, it turns out that careful training and regulation of contractor employees is crucial, and it is not clear that we have sufficient oversight in place. To be sure, in the decade since Blackwater guards shot up civilians in Baghdad’s Nisour Square in 2007, the U.S. government has come a long way in prescribing rules for private security contractors (PSCs) specifically. For example, our PSC contracts now require strict adherence to rules regarding the use of force, and the training and vetting of employees. Supported by many firms within the industry, the U.S. government helped craft an American National Standards Institute (ANSI) management standard for these firms, known as PSC.1-2012, which requires good management, including training in human rights and applicable international law, as well as independent auditing of security companies. The Department of Defense now requires compliance with this standard for all security services contracts. These are all important advances. But how many of these new contract advisors, if any, would be security contractors, and how many would instead be fulfilling other roles for which we haven’t developed comparable rules and requirements? We know from our experience with security contractors that developing these rules takes time – the PSC standard was not adopted until more than a decade after the start of the conflict in Afghanistan.

In the earlier phase of the conflicts in Iraq and Afghanistan, we also learned that supervising massive numbers of contractors is really hard. Significantly, these contractors are not within the military chain of command. Thus, there have been massive coordination problems, as contractors have, for example, moved through areas without notifying commanders. And if contractors do run amok, the authority of military personnel to rein in abuses can be limited. Instead, primary supervision of the contractors falls to contract management personnel, but as the final report of the Commission on Wartime Contracting makes clear, the contract management process has been plagued with problems. And we know it’s very difficult to get sufficient numbers of these management positions filled in order to guard against waste, fraud and abuse.

We also know from our earlier experience with security contractors that it doesn’t matter that U.S. contractors are not wearing a U.S. military uniform – the U.S. military always gets blamed by the population in the host nation when contractors are alleged to have committed abuses. We’ve ameliorated this problem to some degree as the number of contractors has fallen. But with a surge, and many new roles for contractors, this problem—and possible blowback for our military personnel—could again spin out of control. The Prince plan in particular raises this specter. With approval from the White House and logistical support from the U.S. military, local populations would most likely perceived them as “the Americans.”

Finally, we need to ask whether the roles contemplated for these contractors could encroach upon functions that have long been considered inherently governmental and therefore off-limits for contractors. For example, U.S. government policy forbids the outsourcing of offensive combat functions, but the lines between offensive and defensive combat can be difficult to draw and even harder to police. Does the proposal ensure that private contractors will not engage in offensive functions, (e.g. by providing that private planes will be used only for evacuation, not dropping ordinance as Prince already envisions)? And what is to prevent the new contractors from proactively putting themselves in harm’s way and then claiming to act in “self-defense”?

The key point is that the deployment of so many more contractors in new roles almost inevitably leads to a blurring of the crucial lines the government has long drawn about who can engage in acts of offensive combat and who cannot. Erasing or obscuring those lines in the Afghan conflict will likely undermine the ability to hold the line in other cases.

Financial costs

Last, but not least, to what extent are policymakers conducting a detailed and forward-thinking analysis of the full costs of any such proposal? For example, the Commission on Wartime Contracting concluded in 2011 that our earlier widespread use of contractors in Iraq and Afghanistan cost American taxpayers a whopping 31 to 60 billion dollars in waste, fraud, and abuse. A large part of that price tag came from contracts that were slapped together too quickly and contract management failures made possible by weak investments in contract management personnel. So, we must ask, will the cost assessments now being used address the resources needed to ensure that these contracts function properly, so that taxpayers aren’t hit with a big bill on the other side of it all?

* * *

In sum, a surge in privatized warfare in Afghanistan would be a huge policy shift with massive potential consequences that could potentially endanger our military objectives and increase, rather than decrease, our financial burdens. It is not a step to be taken lightly, or without thorough analysis of the pros and cons.

Photo: Erik Prince, chairman of the Prince Group, LLC and Blackwater USA testifying during a House Oversight and Government Reform Committee hearing on private security contractors, October 2, 2007 – Mark Wilson/Getty Images